Rubin Bros. Footwear v. National Labor Relations Bd.

• Decision Date: 13 April 1953
• Docket Number: No. 14155.,14155.
• Citation: 203 F.2d 486
• Parties: RUBIN BROS. FOOTWEAR, Inc. et al. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Fifth Circuit

203 F.2d 486 (1953)

RUBIN BROS. FOOTWEAR, Inc. et al. v. NATIONAL LABOR RELATIONS BOARD.

No. 14155.

United States Court of Appeals, Fifth Circuit.

April 13, 1953.

E. Kontz Bennett, Waycross, Ga., L. E. Pedrick, Waycross, Ga., Bennett, Pedrick & Bennett, Waycross, Ga., of counsel, for petitioner.

Rosanna A. Blake, Atty., A. Norman Somers, Asst. Gen. Cnsl., David P. Findling, Assoc. Gen. Cnsl., George J. Bott, General Counsel, Dominick L. Manoli, Attorney, National Labor Relations Board, Washington, D. C., for respondent.

Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.

HUTCHESON, Chief Judge.

Alleging that the findings of the Board, that they had engaged in named unfair labor practices and had unlawfully discharged one Rawlins and one Dean, were not supported by the record, petitioners brought this proceeding to vacate and set aside the order¹ of the Board based thereon.

Pointing out that the cease and desist provisions are based on findings, (1) that petitioners had threatened to discharge Charlie Crawford and John Lord for endeavoring to persuade other employees to join the union; (2) that they had coerced their employees in violation of the law by sending out a letter² to all of their employees advising them of their intention to reopen and enclosing a card to be filled out if they desired to return to their employment; and (3) that Rawlins and Dean were discriminatorily refused reinstatement at the conclusion of an economic strike; petitioners insist that there is no reasonable basis in the record considered as a whole for these findings. We agree.

As to Crawford and Lord, the evidence shows without contradiction or dispute that no such threats as examiner and board found were made. All that was said to these two employees was said on petitioner's premises and during work hours in regard to and as the result of solicitation for union membership carried on there during such hours. There is no better settled principle than that the employer has the right to impose such conditions on union solicitation of membership.

As to the letter and card for reply, which speak for themselves, we regard the finding that it was intended to be or was coercive of the employees as an unwarranted distortion of its language, a greater distortion of its spirit.

The strikers having gone out on an economic strike and the plant having shut down, they were subject to loss of re-employment by replacement when it opened, and whether the letter was sent because petitioners preferred to have their old employees back or because they felt that they should be given first chance at employment, it comes, we think, with poor grace, to accuse petitioners of high pressuring their employees merely because they went to the trouble to make sure that they had first chance and to make it easy instead of difficult for them to reapply.

As to Rawlins and Dean, while the findings and order are in our opinion indefensible as to both, they are particularly indefensible as to Rawlins both in their content and in respect of the manner in which they were arrived at.

By the undisputed evidence and on the findings of the Board, Rawlins was one of a group of strikers including Shirey and Gunter, standing near the entrance to the plant. Observing employees Odum and Wells approaching the plant, Shirey, Gunter and Rawlins together approached them, Shirey hit Odum and Gunter hit Wells, and policemen arriving arrested Shirey and Gunter. Later in the afternoon Odum swore out a warrant charging Rawlins with hitting him and Rawlins was also arrested and placed in jail.

Petitioners in accordance with their uniform rule of discharging persons wrongfully provoking or engaging in a fight, refused to reinstate Rawlins, not because of his membership in or activities in behalf of the Union but because he had wrongfully engaged in a brawl.

In doing this, they, as they had a right to do, credited the testimony of Odum, the employee who had been ganged up on and attacked, that Rawlins had hit him. But it was not necessary in order to act as they did for them to believe that Rawlins had actually hit Odum. It was sufficient ground for refusing to take Rawlins back that, as the undisputed evidence shows he did, he ganged up on and engaged in the concerted act of trying to intimidate the two employees and prevent them from going to work by fighting with them.

But over and above all this, there is a fatal defect in the finding of examiner and board that, even if the employers in good faith believed, as the undisputed evidence shows, and even the board concedes they did, that Rawlins was a brawler, and discharged him in good faith because they so believed, and not for his union activities, the discharge could be held discriminatory unless the employer assumed and discharged the burden to the satisfaction of examiner and board that the belief was well founded, that is that Rawlins had in fact struck a blow as Odum claimed.

This court, and we think, all other courts have held to the contrary. If anything is settled in labor law and under the act, we think it is that membership in a union does not guarantee the member against a discharge as such. It affords protection against discharge only where it is established that the discharge is because of union activity.³ The board is without power, as it seems to have undertaken in this and in some other of its decisions to do,⁴ to lay down a rule to the contrary.

It is true that in its opinion in this case the board does after a fashion recognize the error of its former decisions, but this is only to the extent of recognizing, without in fact departing from, it. In short it keeps the promise to the ear while it breaks it to the hope. This it cannot do. But all of this aside, and taking the rule to be, as the Board erroneously declares it to be, that the employer must assume the burden of showing that Rawlins was actually engaged in the fighting, it is too clear for argument to the contrary that whether he did or did not strike a blow, he was, under the undisputed testimony and in the sense of criminal participation, aiding and abetting in the fight.

As to Mrs. Dean, while the evidence is not so overwhelming, the finding not so completely unfounded, as in Rawlins' case, it is perfectly plain that examiner and board tried and determined the case as to her on the same incorrect theory followed in the Rawlins' case, that Dean as a striking employee had a right to be reinstated, and that the petitioners must, therefore, show that she had forfeited that right. Having voluntarily left petitioners' employ to go out on strike, she had the right and only the right, if she applied before she was replaced, not to be refused reinstatement merely because she had gone out on strike or for any other union activity.

The evidence in this case, viewed on the record as a whole, establishes beyond reasonable question that she was not refused reinstatement on any such ground, indeed that she was not refused reinstatement at all. Whatever confusion or misunderstanding there was in petitioners' minds as to her priority or lack of priority over the strikers who first went out, this had no part in causing them to refuse to reinstate her. Indeed, upon the record as a whole it is quite clear that she was not refused reinstatement in the sense that pet...